Citation Nr: 1025301
Decision Date: 07/07/10 Archive Date: 07/19/10
DOCKET NO. 04-41 906 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, to include posttraumatic stress disorder (PTSD),
secondary to sexual assault.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. POULSON, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1973 to January
1977.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a rating decision entered in February 2004 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California, denying, in pertinent part, the Veteran's
claim of entitlement to service connection for posttraumatic
stress disorder (PTSD).
In March 2006, the Veteran advised the RO that he had
moved from California to North Carolina, and asked that
his claim folder be transferred to the RO in Winston-
Salem, North Carolina. Such transfer has still not been
effectuated.
On appeal in October 2007 and September 2009, the Board remanded
the case for further development, to include providing
appropriate VCAA notice; obtaining VA treatment and other federal
records; and providing a VA examination to determine the nature
and etiology of any psychiatric disorder that may be present.
FINDING OF FACT
The negative evidence, including lack of evidence of any in-
service assault or treatment for psychological problems, is
relatively equally-balanced with the positive evidence, including
a credible detailed account of the in-service assault, personnel
records establishing a poor performance review and request for
shift change subsequent to the assault, and medical opinions
relating the Veteran's PTSD to in-service sexual trauma.
CONCLUSION OF LAW
The criteria for service connection for an acquired psychiatric
condition, to include PTSD, have been met. 38 U.S.C.A. §§ 1110,
5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§
3.102, 3.159, 3.303, 3.304, 4.125 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Notice and Assistance
The Veteran's service connection claim for an acquired
psychiatric condition, to include PTSD, has been considered with
respect to VA's duties to notify and assist. Given the favorable
outcome noted above, no conceivable prejudice to the Veteran
could result from this adjudication. See Bernard v. Brown, 4
Vet. App. 384, 393 (1993).
II. Analysis
The Veteran seeks service connection for an acquired psychiatric
condition, to include PTSD. The Veteran has stated that he was
sexually abused during service. He contends that the personal
assault took place sometime between April and July 1975, while he
was stationed in Turkey. Specifically, he claims that after
walking in on his roommate having sex with a woman, both the
roommate and the woman proceeded to sexually assault him.
Afterwards, he ran out of the room and bumped into two other
airman. The Veteran stated that he was suicidal and incoherent,
but that the airmen helped calm him down. The Veteran has
provided the name of the alleged perpetrator. While the Veteran
cannot remember the identity of the airmen, he has provided names
of other airmen living in the barracks at the time. He claims
that he reported the incident to his supervisor the following day
and requested a shift change since he and the roommate worked
together. He further contends that he sought treatment for
headaches after the incident. See February 2008 stressor
statement; June 2005 statement; March 2004 Notice of
Disagreement; and December 2002 statement.
Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that
service connection may be granted for a disability diagnosed
after discharge, when all the evidence, including that pertinent
to service, establishes that the disability is due to disease or
injury which was incurred in or aggravated by service. 38 C.F.R.
§ 3.303(d).
Establishment for service connection for PTSD requires: (1)
medical evidence diagnosing PTSD; (2) credible supporting
evidence that the claimed in-service stressor actually occurred;
and (3) medical evidence of a link between current symptomatology
and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see
also Cohen v. Brown, 10 Vet. App. 128 (1997).
A diagnosis of PTSD must be established in accordance with 38
C.F.R. § 4.125(a), which requires that, for VA purposes, all
mental disorder diagnoses must conform to the fourth edition of
the American Psychiatric Association's Diagnostic and Statistical
Manual for Mental Disorders (DSM-IV). 38 C.F.R. § 3.304(f). The
Board recognizes that the present case falls within the category
of situations, to include allegations of sexual assault, in which
it is not unusual for there to be an absence of service records
documenting the events of which the Veteran alleges. See, e.g.,
Patton v. West, 12 Vet. App. 272, 281 (1999). The amendments to
38 C.F.R. § 3.304(f) noted above reflect a recognition that
service records may not contain evidence of personal assault, and
that alternative sources, including testimonial statements from
confidants such as family members, roommates, fellow service
members, or clergy, may provide credible evidence of an in-
service stressor premised on personal assault. See YR v. West,
11 Vet. App. 393, 399 (1998).
Specifically, under 38 C.F.R. § 3.304(f)(3) (2009), if a PTSD
claim is based on in-service personal assault, evidence from
sources other than the veteran's service records may corroborate
the veteran's account of the stressor incident. Examples of such
evidence include, but are not limited to: records from law
enforcement authorities, rape crisis centers, mental health
counseling centers, hospitals, or physicians; pregnancy tests or
tests for sexually transmitted diseases, and statements from
family members, roommates, fellow service members, or clergy.
Evidence of behavior changes following the claimed assault is one
type of relevant evidence that may be found in these sources.
Examples of behavior changes that may constitute credible
evidence of the stressor include, but are not limited to: a
request for a transfer to another military duty assignment;
deterioration in work performance; substance abuse; episodes of
depression, panic attacks, or anxiety without an identifiable
cause; or unexplained economic or social behavior changes. 38
C.F.R. § 3.304(f)(3) (2009).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either event,
or whether a preponderance of the evidence is against a claim, in
which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).
The service treatment records (STRs) are negative for any
treatment regarding the in-service assault. Although the Veteran
sought treatment for headaches after the alleged incident, the
STRs establish that he complained of headaches prior to the
incident, including upon enlistment.
Service personnel records show that the Veteran's performance
report for January 1973 to January 1974 reflects scores in the 7-
9 (9 being the highest) range. His January 1974 to August 1974
evaluation shows scores in the 5-7 range. The September 1974 to
March 1975 evaluation shows scores in the 7-9 range. For the
period of March 1975 to June 1975, the Veteran scored in the 7-8
range. The June 1975 to June 1976 evaluation shows scores in the
6-7 range. The reporting official stated that the Veteran
carried out his duties in a minimally satisfactory manner;
required close supervision; and "frequently had difficulty in
carrying out instructions." The June to October 1976 assessment
shows scores in the 8-9 range. The reporting official noted that
the Veteran had become more assertive and needed a minimum of
supervision, and that his performance had improved substantially.
Service personnel records establish that the Veteran requested a
change of station in April 1975, which was approved.
After service, the Veteran and his wife sought marriage
counseling through the VA. Progress reports dated March and May
1979 show that the Veteran referenced a sexual problem/difficulty
prior to their marriage, but was reluctant to discuss it. These
records do not contain a psychological diagnosis. However, the
counselor noted the Veteran's anger and anxiety issues and stated
that he had a schizoid personality.
A private treatment record dated May 2001 shows that the Veteran
was diagnosed with depression after he was laid off from his job.
Treatment records from the Northbay Veterans Center for the
period of January 2001 to January 2004 show that the Veteran
initially described his military experience as "good." In
January 2002, the Veteran stated there was "a lot surfacing
after 45 years." He described childhood sexual abuse by his
mother, a homosexual experience when he was a teenager, and
sexual molestation by a barracks roommate and his girlfriend
while stationed in Turkey. The Veteran was very tearful when
sharing the "previously repressed trauma." In November 2002,
the therapist reviewed the Veteran's service records, which were
unremarkable "other than a decrease in his evaluation grades
subsequent to his arrival in Turkey." The Veteran shared
pictures of the base and the surrounding town in Turkey,
including the barracks where he was sexually molested, and stated
that the reason for sharing the photos was to convince his
therapist that his claims were valid. In August 2003, the
Veteran became "extremely emotional" when discussing the rape.
He reported feeling very suicidal at the time, and stated that he
continued to have suicidal thoughts.
A May 2003 letter from K.C.B., the Veteran's therapist at the
Northbay Veterans Center, states that the Veteran had received
treatment on a monthly basis since January 2001, and that he had
been diagnosed with PTSD. The letter states that the Veteran's
symptoms included intrusive and distressing recollections and
nightmares of sexual trauma experienced while stationed in
Turkey. He also suffered from suicidal ideations, a sense of
helplessness and hopelessness, flashbacks, and intense
psychological and physiological responses to cues that remind him
of his traumatic experiences. He had difficulty sleeping and
concentrating. He reported irritability, anger, rage,
hypervigilance, and an exaggerated startle response. The
therapist wrote: "Despite the lack of evidence to substantiate
his claim (as is often the case in situations involving male
sexual trauma) it is obvious by the dramatic drop in his
performance evaluation and a subsequent request for a transfer to
another shift, that a traumatic event did happen."
A VA treatment record dated August 2002 shows that the Veteran
was tearful and agitated. He reported being sexually molested by
his mother as a small child. His father was physically and
mentally abusive. The Veteran was involved in a homosexual
relationship when he was a teenager. He reported being "very
promiscuous with prostitutes" while stationed in Turkey. The
nurse deferred providing a diagnosis. A few days later, the
Veteran saw a psychiatrist. The doctor wrote "[h]e vaguely
refers to a sexual experience with a couple while in the military
but says he [is] too embarrassed to talk about it." He
presented with a mixture of depression and anxiety, the level of
which seemed to fluctuate a great deal. The Axis I diagnosis was
depressive disorder, not otherwise specified. The Axis II
diagnosis was personality disorder, traits from all 3 clusters.
The doctor determined that the Veteran's condition could best be
subsumed under Adjustment Disorder with mixed Anxiety and
Depressed Mood, severe.
VA treatment records dated September 2002 to September 2003
contain a PTSD diagnosis. The Veteran participated in an anger
management group during this time period. A September 2002
treatment record shows that the doctor felt it was unlikely that
medication would help the Veteran "since so much of his pain and
dysphoria is due to the significant change in his economic
status."
March 2004 VA treatment records show that the Veteran reported
increasing difficulties with employment, anxiety, and depression
since being laid off in 1999. The doctor noted that "[o]nly
when asked" did the Veteran report being raped while in the
service in Turkey. He reportedly thought about the incident on a
daily basis. He stated that it was only recently that had he
been able to talk about it for the first time, and that he "fell
apart emotionally when he did." The Veteran stated that he had
reported the incident while in service but did not know if there
was a record of it. The doctor noted that the Veteran's
presentation and history appeared to be consistent with his
report, but he declined to "push for details."
A May 2004 VA PTSD examination report shows the Veteran
complained of being rejected and reported an extreme fear of the
unknown. He also complained of a recurring sleep disturbance,
which appeared to be related to chronic pain from orthopedic
problems and peripheral neuropathy and depression. The Veteran
reported being sexually assaulted by a black male and woman while
on active duty in Turkey. He complained of occasional
nightmares, but the examiner determined they were not replays of
the sexual assault. The Veteran reported extreme anger and
increased intrusive memories of the assault, as well as a history
of intermittent irritability and rage reactions. The examiner
noted that the Veteran had tried to "bury" the incident for
many years and did not want to think about it. The examiner
noted that the sexual assault was "well documented in his
stressor statement." The Veteran did not mention any sexual
abuse by his mother, but the examiner noted that it was mentioned
in treatment records. Upon examination, the Veteran's mood was
somewhat labile. His abstract reasoning was somewhat poor, and
there was some impairment noted in concentration and well as
long- and short-term memory. The Veteran was "somewhat vague
and unclear" about the possibility of auditory hallucinations.
There was no clear evidence of paranoia. The Axis I diagnosis
was major depressive disorder. The Axis II diagnosis was mixed
personality disorder with narcissistic and borderline features.
The Axis IV diagnosis included a history of sexual assault. The
examiner determined that the Veteran suffered from serious mixed
character pathology. He opined that "[i]t is unlikely that his
military experiences caused this condition, but it is highly
likely that the sexual assault he reports exacerbated it and made
his present ability to function far more difficult." The
examiner further determined that being laid off in 1999 "appears
to have been a significant precipitating event for [the
Veteran's] downward spiral in terms of depression, anger,
impaired ability to relate to other people, and feelings of
desperation."
A September 2005 VA treatment record shows that the Veteran
reported sexual trauma as a child. When asked about military
trauma, he replied "I'm not going into it." He explained that
he had already gone into detail about the incident with another
therapist and did not feel comfortable discussing it with the
doctor. Upon examination, his attitude alternated between
cooperative and conciliatory to adamant opposition to
psychological testing. His eye contact was appropriate, but
sometimes too intense. His affect was very dramatic and labile.
His mood was depressed. His speech was obfuscating and he did
not answer questions concretely. The Veteran presented with a
chronic and pervasive negativity. The Axis I diagnosis was rule
out bipolar disorder not otherwise specified. The Axis II
diagnosis was personality disorder not otherwise specified with
histrionic and borderline features.
A November 2005 treatment note shows that the Veteran was calmer
but continued to be obsessed with "negative aspects of the
modern world." The doctor noted a marked decrease in the speed
of the Veteran's thinking and speech. Depression was apparent.
The Veteran was suspicious when answering trauma-related
questions. He declined a PTSD screening. The assessment was
"coping with significant inability to organize activities and
thoughts apparently secondary to a bipolar disorder."
A May 2006 treatment note shows that the Veteran described being
raped while in the military and sexually abused by his mother as
a child. He did not report intrusive thoughts or vivid dreams.
He complained of problems with his temper. The Veteran was
cooperative and his affect was appropriate. The doctor noted
that he was psychiatrically stable. The Axis I diagnoses
included bipolar disorder, not otherwise specified, and history
of adult sexual trauma rule out military sexual trauma and PTSD.
The Axis II diagnosis was personality disorder, not otherwise
specified, narcissistic traits. April 2007, September 2008 and
March 2009 treatment notes contain the same diagnoses. In
September 2008, the Veteran's wife reported that the Veteran
became angry whenever he referred to the alleged military sexual
trauma incident in Turkey.
A December 2009 VA PTSD examination report shows that the Veteran
reported being physically abused by his parents. He also
reported being raped in 1975 while stationed in Turkey, and
described feeling a sense of helplessness and horror at the time,
but did not want to go into further detail about the incident.
The Veteran reported recurrent and intrusive distressing
recollections of the incident, including images, thoughts, or
perceptions. He also reported recurrent distressing dreams of
the event, as well as intense psychological and physiological
distress when exposed to internal or external cues that
symbolized or resembled the event. The Veteran complained of a
sleep disturbance, irritability, hypervigilance, and an
exaggerated startle response. Upon examination, the examiner
noted handwringing. The Veteran was cooperative and attentive.
His mood was agitated and depressed. He was easily distracted
and had a short attention span. His thought process was
described as racing. The Veteran discussed vague thoughts about
not wanting to live but denied a current plan or intent. The
examiner diagnosed chronic PTSD due to military sexual trauma and
bipolar disorder. He opined that "it is at least as likely as
not that the PTSD is causally linked" to the military sexual
assault. Although the examiner noted consistent documentation of
bipolar disorder, he determined that the evidence of behavior
changes in service are not sufficient enough to conclude if it is
as least as likely as not that this disability had its onset
during service without mere speculation.
The Veteran currently has PTSD and a number of other psychiatric
disabilities. While the record does not show any treatment for
psychological problems in service or any indication that a sexual
assault took place, the Veteran has provided credible detailed
statements regarding the assault. VA treatment records dated in
1979 note the first findings of a psychological problem in the
Veteran. At that time, he alluded to a sexual problem that
preceded his marriage. However, it was not until January 2002
that the Veteran related the military sexual assault, at which
time he became tearful. He has indicated that the sexual trauma
took place between April and July 1975. In May 2003, his
therapist at the Veterans Center determined that the Veteran's
PTSD was directly related to his in-service sexual trauma. A May
2004 VA examiner diagnosed major depressive disorder and mixed
personality disorder; she determined that, while it was unlikely
that the military sexual trauma caused this condition, it was
"highly likely" that the sexual assault exacerbated the
condition. However, it is unclear which diagnosis the
psychologist was referring to.
In December 2009, a VA examiner diagnosed chronic PTSD due to
military sexual trauma. The Veteran's personnel records indicate
that he had less than stellar performance reviews for the periods
of January to August 1974, and from June 1975 to June 1976.
While his June to October 1976 performance review improved, the
Board notes that it covers the time period for which the Veteran
requested and received a shift transfer.
The negative evidence in this case, including lack of evidence of
any in-service assault or treatment for psychological problems,
is relatively equally-balanced with the positive evidence
including the Veteran's credible and detailed statements
regarding the assault, evidence of performance problems and a
shift request subsequent to the incident; and medical opinions
relating the Veteran's PTSD to in-service sexual trauma. Thus,
all doubt is resolved in the Veteran's favor and service
connection for PTSD is warranted. See 38 C.F.R. § 3.102.
ORDER
Entitlement to service connection for an acquired psychiatric
disorder, to include PTSD, is granted, subject to the rules and
payment of monetary benefits.
____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs